U.S. v. Rodriguez, 86-1871

Citation812 F.2d 414
Decision Date27 February 1987
Docket NumberNo. 86-1871,86-1871
PartiesUNITED STATES of America, Appellee, v. Silvio Perez RODRIGUEZ, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Norman Wilkinson, Fort Smith, Ark., for appellant.

Mark W. Webb, Fort Smith, Ark., for appellee.

Before LAY, Chief Judge, HEANEY, Circuit Judge, and CAHILL, * District Judge.

CAHILL, District Judge.

Appellant Silvio Perez Rodriguez was convicted by a jury of aiding and abetting co-defendant Nicholas Garcia in the crimes of obstruction of the mail, forging, and uttering, in violation of 18 U.S.C. Secs. 2, 495, and 1702. On appeal, Rodriguez contends that the district court erred in denying his motion for judgment of acquittal on the basis that the evidence was insufficient to support a conviction. In the alternative, Rodriguez argues that he is entitled to a new trial as the verdicts are contrary to the weight of the evidence. We affirm the judgment of the district court. 1

I. FACTS.

In February 1983, Jose C. Salina filed for an income tax refund, but after months passed without receipt of the check, Jose Salina filed a claim and requested that the IRS trace the check.

The IRS investigated Salina's claim and found that the refund check had been mailed on March 11, 1983, to an address in Fort Smith, Arkansas, the home address of Mrs. Salina's half-sister, Minerva Carson, with whom the Salinas had previously lived. The investigation revealed that the check had been cashed on March 15, 1983. The check had not been endorsed by either of the Salinas.

The evidence at trial showed that after the Salinas moved they continued to receive mail at Minerva Carson's home and they expected the refund check to be mailed to that address. Subsequent to the Salinas moving out of Ms. Carson's house, Hazel Robinson and the defendant, Silvio Perez Rodriguez, took up residence in the Carson home. The evidence also showed that because Carson was illiterate, Robinson would survey the mail and inform Carson to whom the mail belonged. Mrs. Salina was accustomed to being contacted by Carson if she had received any mail.

On the day in question, Robinson announced that there was a check among the mail that was received. However, before Robinson could identify to whom the check was addressed, Silvio Perez Rodriguez had taken the check and left the house stating that he was going to cash the check. Shortly thereafter, he returned with the check folded in his pocket announcing that he was unable to get the check cashed. Once again, Rodriguez left the house, but this time he left in a car that was waiting for him outside. Upon his return, he handed Robinson $100.00, half of which she gave to Carson. Rodriguez never received any other checks in the mail while he resided at the Carson house.

At trial, Rodriguez claimed that Robinson gave him the check and when he realized that the check was not addressed to him, he returned it to her. He admitted leaving the house and returning with $100.00. Rodriguez' co-defendant, Nicholas Garcia, pled guilty to forging the Salinas' name on the refund check. Garcia also stated that Rodriguez gave him the check. During direct examination, however, Garcia claimed he received the check from Orlando Garcia rather than Rodriguez. When confronted with the sworn statement he gave to the Secret Service agents, he admitted to having stated previously that Rodriguez had given him the check. In addition, he admitted that he had stated under oath to the Court, during a hearing for changing his plea, that he received the check from Silvio Rodriguez. A fingerprint specialist, Cory Burns, testified that he identified four of Rodriguez' fingerprints on the Treasury check.

The jury returned a verdict of guilty on all three counts. The district court sentenced Rodriguez to 18 months on each count, to be served consecutively.

II. MOTION FOR JUDGMENT OF ACQUITTAL.

Rodriguez contends that the district court committed error when it denied his motion for judgment of acquittal because the evidence was primarily circumstantial; therefore, it was insufficient to prove that it was Rodriguez who gave the check to Garcia.

In the Eighth Circuit the rule is that a motion for a judgment of acquittal should be denied when, after reviewing the evidence in the light most favorable to the government, there is substantial evidence justifying an inference of guilt as found irrespective of any countervailing testimony that may be introduced. United States v. Lincoln, 630 F.2d 1313, 1316-1317 (8th Cir.1980), citing Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

In reviewing the evidence the government is given the benefit of all inferences that may reasonably be drawn in its favor. United States v. Coronel Quintana, 752 F.2d 1284, 1292 (8th Cir.1985); United States v. Hutchings, 751 F.2d 230, 238 (8th Cir.1984); Lincoln, 630 F.2d at 1316. Moreover, it is not essential for the prosecution to exclude every reasonable hypothesis of guilt, United States v. Nabors, 762 F.2d 642, 653 (8th Cir.1985); rather, the evidence need only be sufficient enough that a reasonable minded jury could conclude beyond a reasonable doubt as to the existence of any of the essential elements of the crime charged. United States v. Netz, 758 F.2d 1308 (8th Cir.1985); United States v. Sparr, 748 F.2d 1249, 1252 (8th Cir.1984), quoting United States v. Brim, 630 F.2d 1307, 1308, 1311 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981). The essential elements of a crime may be proved by circumstantial evidence as well as direct. Holland v. U.S., 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954); Coronel, 752 F.2d at 239; United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983).

The law in this circuit is clear that the essential elements of aiding and abetting are: 1) that the defendant associated himself with the unlawful venture; 2) that he participated in it as something he wished to bring about; and 3) that he sought by his action to make it succeed. United States v. LaGuardia, 774 F.2d 317 (8th Cir.1985); United States v. Netz, 758 F.2d 1308 (8th Cir.1985). The evidence indicates that the jury reasonably could have concluded that Rodriguez' participation satisfied these elements.

Although there is no direct evidence, our review of the record reveals that the government presented a substantial amount of circumstantial evidence from which the jury could reasonably infer that Rodriguez aided and abetted Garcia in forgery, uttering, and obstruction of the mail. The transcript contains testimony that Rodriguez lived in the Carson household at the time the check was mailed and had...

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